State v. Hill

[Cite as State v. Hill, 2011-Ohio-5810.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24410

v. : T.C. NO. 2010 CR 900

KRISTAL N. HILL : (Criminal appeal
from
Common Pleas Court)
Defendant-Appellant :

:

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OPINION

Rendered on the 10th day of November , 2011.

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ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting
Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
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..........

DONOVAN, J.

{¶ 1} Defendant-appellant Kristal N. Hill appeals her conviction and

sentence for one count of endangering children (serious physical harm), in

violation of R.C. 2919.22(B)(1), a felony of the second degree, and one count

of endangering children (parent-serious harm), in violation of R.C. 2919.22(A),

a felony of the third degree. Hill filed a timely notice of appeal with this Court

on December 29, 2010.

I

{¶ 2} On March 2, 2010, Hill observed three little red bumps on her

four-year old daughter’s left upper arm while giving the child a bath. Hill

noticed that her daughter, E.T., was picking at them. Hill suspected that the

bumps on E.T.’s arm were ringworm, and she began applying an antifungal

cream in an effort to dry out the affected area. Hill applied the antifungal

cream to E.T.’s arm for several days.

{¶ 3} Once she ran out of antifungal cream, Hill began treating the

affected area on E.T.’s arm with bleach. After applying the bleach to E.T.’s

arm with a Q-tip, Hill testified that she would then apply cortisone gel in order

to cool the affected area. Hill applied bleach to E.T.’s arm on approximately
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three occasions. Hill testified that she believed that bleach would cure the

ringworm by drying it out, and the cortisone gel would stop E.T. from

scratching the affected area.

{¶ 4} Hill testified that on March 18, 2010, while she was giving E.T. a

bath, she noticed that the ringworm was not healing properly and appeared to be

growing in size. Hill brought E.T. into the kitchen and explained that she was

going to cure the ringworm with an “old home remedy that was used on

Mommy.” Hill proceeded to apply bleach to the affected area on E.T.’s upper

arm. Hill testified that she then warmed a spoon over the stove and tapped the

hot spoon around the edge of the ringworm while her other two daughters blew

on E.T.’s arm. Hill applied cortisone gel to the affected area on E.T.’s arm and

put her to bed.

{¶ 5} On Saturday, March 20, 2010, E.T. was at the home of her father,

Vernon Thomas, as part of his bi-weekly visitation. Thomas decided to give

E.T. a bath during which he noticed that she had a severe burn on her left upper

arm. Thomas immediately took E.T. to Children’s Medical Center in order to

have the burn treated. Upon arriving at the hospital, E.T. spoke with Pamela

Byer, a medical social worker whose duty it was to obtain E.T.’s social history

in order to assist the medical staff in diagnosing and treating the child. Byer
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testified that E.T. stated that her mother placed a hot spoon on the stove and

then placed the spoon on her arm. Byer also testified that E.T. also stated that

her mother told her not to tell anyone. A subsequent medical examination

established that E.T. had suffered a second degree burn to her left upper arm.

Additionally, the burn was at least two days old and had been left untreated.

E.T. suffered permanent scarring on her arm from the burn.

{¶ 6} On March 31, 2010, Hill was indicted for one count of endangering

children, in violation of R.C. 2919.22(B)(1), a felony of the second degree.

Approximately two months later on May 25, 2010, Hill was indicted for an

additional count of endangering children (parent-serious harm), in violation of

R.C. 2919.22(A), a felony of the third degree. The case proceeded to jury trial

on July 23, 2010, after which the trial court declared a mistrial.

{¶ 7} A second jury trial was held on November 19, 2010. Prior to the

second trial, the trial court held that E.T. was incompetent to testify.

Ultimately, Hill was found guilty of endangering children (serious physical

harm), and one count of endangering children (parent-serious harm). On

December 20, 2010, Hill was sentenced to a term of five years of community

control.

{¶ 8} It is from this judgment that Hill now appeals.
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II

{¶ 9} Hill’s first assignment of error is as follows:

{¶ 10} “THE VERDICT SHOULD BE REVERSED BECAUSE THE

TRIAL COURT ERRED IN SUSTAINING THE PROSECUTION[’]S

OBJECTION TO DEFENSE COUNSEL’S LINE OF QUESTIONING

REGARDING HOME REMEDIES DURING VOIR DIRE.”

{¶ 11} In her first assignment, Hill contends that the trial court abused its

discretion when it sustained the State’s objection to defense counsel’s specific

line of questioning during voir dire regarding the jury thoughts and feelings

towards the use of bleach and a heated spoon as a “home remedy” for the

treatment of ringworm.

{¶ 12} In State v. Davis, 116 Ohio St.3d 404, 409-410, 2008-Ohio-2, the

Ohio Supreme Court recently stated as follows:

{¶ 13} “‘The manner in which voir dire is to be conducted lies within the

sound discretion of the trial judge.’ State v. Lorraine (1993), 66 Ohio St.3d 414,

418. A trial court has ‘great latitude in deciding what questions should be

asked on voir dire.’ State v. Wilson (1996), 74 Ohio St.3d 381, 386. Absent a

clear abuse of discretion, prejudicial error cannot be assigned to the

examination of the venire. State v. Jackson, 107 Ohio St.3d 53,
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2005-Ohio-5981, ¶ 28.”

{¶ 14} “Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary, or unconscionable. Huffman v. Hair Surgeon, Inc.

(1985), 19 Ohio St.3d 83, 87. It is to be expected that most instances of abuse

of discretion will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.

{¶ 15} A decision is unreasonable if there is no sound reasoning process

that would support that decision. It is not enough that the reviewing court,

were it deciding the issue de novo, would not have found that reasoning process

to be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result.

{¶ 16} The record establishes that Hill’s counsel was permitted to ask the

prospective jurors whether they or their children ever had ringworm. Defense

counsel was also permitted to ask the jurors if they had ever “used a home

remedy to cure a skin rash or anything – or any kind of skin disorder?” It was

not until defense counsel began specifically questioning the jury regarding

whether any of them had used bleach to treat skin ailments that the State

objected.

{¶ 17} The State argued that by inquiring into the jurors’ feelings
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regarding the use of bleach as a home remedy, defense counsel was attempting

”to prejudge the venire’s reaction to Hill’s anticipated defense.” “The purpose

of voir dire should be limited to inquiries aimed at determining the prospective

jurors’ qualifications to serve.” State v. Patterson, 188 Ohio App.3d 292, 306,

2010-Ohio-2012.

{¶ 18} Upon review, we find that defense counsel was not prevented from

gauging prospective jurors’ general views with respect to the use of home

remedies. The permitted line of questioning provided a meaningful

opportunity for defense counsel to gain insight into the venire’s general

knowledge and bias, if any, towards the use of home remedies. Accordingly,

the trial court acted within its discretion by precluding defense counsel from

asking questions regarding case-specific details, namely whether any of the jury

used bleach as a home remedy to treat skin ailments. Contrary to Hill’s

assertions, further questions regarding bleach and its use as a home remedy

were unnecessary to a determination as to whether the jury could be fair and

impartial in evaluating the potential evidence to be adduced during trial.

Accordingly, the record does not support Hill’s claim that the trial court

unreasonably restricted defense counsel’s voir dire of the prospective jurors.

{¶ 19} Hill’s first assignment of error is overruled.
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III

{¶ 20} Hill’s second assignment of error is as follows:

{¶ 21} “THE VERDICT SHOULD BE REVERSED BECAUSE THE

TRIAL COURT ERRED WHEN IT ADMITTED HEARSAY STATEMENTS

OF THE CHILD, WHICH VIOLATED APPELLANT’S RIGHTS UNDER

THE SIXTH AMENDMENT AND THE FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE,

SECTION TEN OF THE OHIO CONSTITUTION.”

{¶ 22} In her second assignment, Hill argues that the trial court erred

when it allowed Pamela Byer to testify regarding statements made by E.T. to

Byer after the child was brought to the hospital for treatment. Specifically, Hill

asserts that Byer’s primary role when she interviewed E.T. was to investigate

alleged abuse. As a result, Hill argues that any or all of E.T.’s statements

offered by Byer at trial were inadmissible hearsay and violated the

Confrontation Clause of the Sixth Amendment.

{¶ 23} “Not all hearsay implicates the Sixth Amendment Confrontation

Clause, which establishes that testimonial statements of witnesses who are

absent from trial are admissible only where the witness is unavailable and

where the defendant has had a prior opportunity to cross-examine the witness.
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Crawford v. Washington (2004), 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d

177. ‘It is the testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence, is

not subject to the Confrontation Clause.’ Davis v. Washington (2006), 547

U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224. However, the United States

Supreme Court specifically avoided any comprehensive definition of what

constitutes a ‘testimonial’ statement. Crawford, at 68.” State v. Matthews, 189

Ohio App.3d 446, 454-455, 2010-Ohio-4153.

{¶ 24} The testimony of Byer who interviewed E.T. at Children’s Medical

Center was admitted pursuant to Evid.R. 803, which states:

{¶ 25} “The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:

{¶ 26} “(4) Statements for purposes of medical diagnosis or treatment.

Statements made for purposes of medical diagnosis or treatment and describing

medical history, or past or present symptoms, pain or sensation, or the inception

or general character of the cause or external source thereof insofar as reasonably

pertinent to diagnosis or treatment.”

{¶ 27} “Statements made to medical personnel for purposes of diagnosis

or treatment are not inadmissible under Crawford because they are not even
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remotely related to the evils that the Confrontation Clause was designed to

avoid.” State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, ¶63, citations

omitted. See, also, State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5428, ¶25.

Statements of this kind are not testimonial in nature. Instead, they fall within a

well-defined exception to the hearsay rule, that is statements made for the

purpose of medical diagnosis or treatment. Evid.R. 803(4). The exception

allows the admission of statements made not only to licensed physicians, but

also to psychologists and social workers, State v. Sheppard, 164 Ohio App.3d

372, 2005-Ohio-6065, State v. Edinger, Franklin App. No. 05AP-31,

2006-Ohio-1527, so long as the function of the person to whom the statement is

made was diagnosis or treatment. State v. Chappell (1994), 97 Ohio App.3d

515, 531. “A reviewing court will not reverse the trial court’s admission of

evidence absent an abuse of discretion.” State v. Bellomy, Montgomery App.

No.21452, 2006-Ohio-7087.

{¶ 28} At trial, Byer testified that she is a medical social worker employed

by Children’s Medical Center to consult with children and families to assess

situations of possible neglect or abuse before the children are seen by a

physician. Byer further testified that she has a master’s degree in social work

and is licensed in Ohio as an independent social worker supervisor. Byer’s
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primary goal when interviewing children at the hospital is to obtain information

that will aid medical personnel such as physicians and nurses to determine the

best course of treatment for the child.

{¶ 29} Regarding the statements made to her by E.T., Byer testified as

follows:

{¶ 30} “The State: Okay. And can you tell the jury how you began your

meeting with [E.T.] on the 20th of March, 2010?

{¶ 31} “Byer: When I met with [E.T.], just introduced myself and said – I

try to put a child at ease and be calm. And she was fine. She was alert. And

I asked her fairly quickly, ‘Just tell me what happened. Why are you here at

the hospital?

{¶ 32} “***

{¶ 33} “Q: And what did [E.T.] tell you at that time?

{¶ 34} “Byer: [E.T.] told me that [Hill] had placed a spoon in the stove

and then placed it on her arm and told her not to tell anyone.

{¶ 35} “***

{¶ 36} “Q: Okay, not to tell anyone. When [E.T.] was telling you this,

did her demeanor change or did she seem embarrassed or reluctant at all?

{¶ 37} “A: I did notice a change when she was telling me about the burn.
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She had a worried look on her face and she added the statement after she told

me that initial one that her mom placed the spoon on the stove and on her arm

because she was hit in daycare.”

{¶ 38} In Muttart, the defendant was convicted of raping a child under 13

years of age, and the Supreme Court of Ohio determined that the trial court did

not abuse its discretion in admitting the victim’s out of court statements to

medical personnel pursuant to Evid.R. 803(4). 116 Ohio St.3d 5,

2007-Ohio-5267. The statements contained the perpetrator’s identity. The

Muttart court further determined that the victim’s statements were not

testimonial in nature and did not implicate the defendant’s Sixth Amendment

right of confrontation. In the course of its analysis, the Court determined that

the “salient inquiry is * * * whether [the victim’s] statements were made for

purposes of diagnosis and treatment rather than for some other purpose.” Id., ¶

47.

{¶ 39} The Court further went on to note that the trial court “retains the

discretion to admit the testimony after considering the circumstances

surrounding the child victim’s statements.” Id., ¶ 48. The Court determined,

“[a]t a minimum * * * a nonexhaustive list of considerations includes (1)

whether the child was questioned in a leading or suggestive manner, (citations
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omitted) (2) whether there is a motive to fabricate, such as a pending legal

proceeding such as a ‘bitter custody battle,’ (citations omitted) and (3) whether

the child understood the need to tell the physician the truth, (citations omitted).

In addition, the court may be guided by the age of the child making the

statements, which might suggest the absence or presence of an ability to

fabricate, and the consistency of the declarations. (Citation omitted). In

addition, the court should be aware of the manner in which a physician or other

medical provider elicited or pursued a disclosure of abuse by a child victim, as

shown by evidence of the proper protocol for interviewing children alleging

sexual abuse.” Id., ¶ 49.

{¶ 40} In State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, the Ohio

Supreme Court recently considered the admissibility of statements given during

interviews at child advocacy centers. The Arnold court noted that these types

of interviews seek to elicit two types of statements: to wit: statements for the

purposes of medical diagnosis and treatment and forensic statements. Id. The

Arnold court focused on the admissibility of these statements under the

Confrontation Clause, rather than Evid. R. 803(4). Id.

{¶ 41} In Arnold, the court held that statements given during these

interviews for the purposes of medical diagnosis and treatment were
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non-testimonial in nature and were admissible in court. Id. Conversely,

statements elicited for forensic purposes were testimonial and were therefore,

inadmissible pursuant to the Confrontation Clause. Id. Interestingly, the

Arnold court noted that most of these interviews contain both types of

statements, but only the non-testimonial statements are admissible in court. Id.

{¶ 42} Upon review, we conclude that the trial court did not abuse its

discretion by permitting Byer to testify regarding E.T.’s statements pursuant to

Evid. R. 803(4). E.T.’s statements to Byer were made for purposes of medical

diagnosis and treatment. There is no suggestion herein that E.T. was not

truthful. There is no suggestion of a motive for fabrication on E.T.’s part.

E.T. had injuries consistent with her recitation of events. Byer made clear that

it is her practice to ask non-leading and non-suggestive questions in the course

of an interview of a child suspected of being abused or neglected, and she did

so with E.T. The interview lasted approximately ten minutes, and the

questions asked by Byer, as well as the statements elicited from E.T., were

focused on the nature and cause of the burn on her left arm. Byer was

responsible for a medical and psychological evaluation of E.T. Accordingly,

we conclude that the trial court did not abuse its discretion in determining that
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E.T.’s statements were made for medical diagnosis and treatment purposes.

{¶ 43} Regarding Hill’s suggestion that his Sixth Amendment right to

confrontation was violated, Muttart held, “Statements made to medical

personnel for purposes of diagnosis or treatment are not inadmissible under

Crawford, because they are not even remotely related to the evils that the

Confrontation Clause was designed to avoid.” Id., ¶ 46. Accordingly, Hill’s

claim pursuant to Crawford fails, since “we have no concern that the statements

at issue were testimonial in nature. The statements made by [E.T.] were not

made in the context of in-court testimony or its equivalent. There is no

suggestion that they were elicited as part of the police investigation or in a

sworn statement with intention of preserving the statement for trial or that they

were a pretext or facade for state action.” Id., ¶ 61. Thus, E.T.’s statements

were non-testimonial in nature, and therefore, admissible pursuant to Arnold.

{¶ 44} Hill’s second assignment of error is overruled.

IV

{¶ 45} Hill’s third assignment of error is as follows:

{¶ 46} “THE TRIAL COURT ERRED IN FAILING TO INSTRUCT

THE JURY THAT THE CHILD WOULD NOT TESTIFY AT TRIAL AS

SHE WAS DEEMED INCOMPETENT.”
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{¶ 47} In her third assignment, Hill contends that the trial court erred

when it refused to instruct the jury that E.T. did not testify during trial because

she was found to be incompetent.

{¶ 48} A trial court’s decision to give or refuse to give jury instructions

will not be disturbed on appeal unless the record affirmatively demonstrates an

abuse of discretion on the facts and circumstances of the particular case. State

v. Wolons (1989), 44 Ohio St.3d 64, 68. “[A] trial court must fully and

completely give the jury instructions which are relevant and necessary for the

jury to weigh the evidence and discharge its duty as the fact finder.” State v.

Comen (1990), 50 Ohio St.3d 206, ¶ 2 of the syllabus. “A criminal defendant

has a right to expect that the trial court will give complete jury instructions on

all issues raised by the evidence." State v. Williford (1990), 49 Ohio St.3d 247,

251, citations omitted.

{¶ 49} Initially, we note that Hill has not included a citation to any

relevant legal authority in support of her argument that the trial court erred by

refusing to instruct the jury that E.T. had been found incompetent to testify

during trial. Additionally, a blanket pronouncement that E.T. was previously

found “incompetent to testify”, without further explanation, would only serve to

mislead and confuse the jury regarding the meaning of the term “incompetent.”
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More importantly, had such an instruction been given, the jury could have

impermissibly concluded that the trial court, by declaring E.T. “incompetent,”

found her statements implausible, and by implication, believed that her

statements to Byer were inherently unreliable.

{¶ 50} E.T.’s statements to Byer were admissible under the hearsay

exception in Evid. R. 803(4), as statements for the purposes of medical

diagnosis or treatment. Under the circumstances presented in the instant case,

an instruction regarding E.T.’s incompetency would have been totally

irrelevant. State v. McCollum (April 14, 1989), Sandusky App. No. S-88-15.

More importantly, any probative value E.T.’s incompetence would have had on

the proceedings was substantially outweighed by the potential to mislead and

confuse the jury. Accordingly, the trial court did not abuse its discretion when

it denied Hill’s request for a jury instruction that E.T. was incompetent to testify

at trial.

{¶ 51} Hill’s third assignment of error is overruled.

V

{¶ 52} Hill’s fourth and final assignment of error is as follows:

{¶ 53} “THE JURY VERDICT SHOULD BE REVERSED BECAUSE

THERE IS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION,
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AND THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

{¶ 54} In her final assignment, Hill argues that the evidence adduced

during trial was insufficient to sustain her convictions. Alternatively, Hill

contends that the greater weight of the evidence did not support the verdict

rendered by the jury. Specifically, Hill asserts that she did not act “recklessly”

when she put bleach on E.T.’s arm and burned it with a hot spoon. She also

asserts that E.T. did not suffer serious physical harm.

{¶ 55} Hill was convicted of two counts of endangering children. Count

I was for violating R.C. 2919.22(B)(1), which provides that no person shall

recklessly abuse a child under eighteen years of age, where such abuse results in

serious physical harm to the child. Count II was for violating R.C.

2919.22(A), which provides that no person, being the parent of a child under

eighteen years of age, shall recklessly create a substantial risk to the health or

safety of the child, by violating a duty of care that results in serious physical

harm to the child.

{¶ 56} “Recklessly” is defined under R.C. § 2901.22(C) as follows:

{¶ 57} “A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely
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to cause a certain result or is likely to be of a certain nature. A person is

reckless with respect to circumstances when, with heedless indifference to the

consequences, he perversely disregards a known risk that such circumstances

are likely to exist.”

{¶ 58} “Serious physical harm” is defined in pertinent part:

{¶ 59} “(d) Any physical harm that involves some permanent

disfigurement, or that involves some temporary, serious disfigurement.” R.C.

2901.01(A)(5)(d).

{¶ 60} “A challenge to the sufficiency of the evidence differs from a

challenge to the manifest weight of the evidence.” State v. McKnight, 107

Ohio St.3d 101,112, 2005-Ohio-6046. “In reviewing a claim of insufficient

evidence, ‘[t]he relevant inquiry is whether, after reviewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.’

(Internal citations omitted). A claim that a jury verdict is against the manifest

weight of the evidence involves a different test. ‘The court, reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of
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justice that the conviction must be reversed and a new trial ordered. The

discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.’”

Id. (Internal citations omitted).

{¶ 61} The credibility of the witnesses and the weight to be given to their

testimony are matters for the trier of facts to resolve. State v. DeHass (1967),

10 Ohio St.2d 230, 231. “Because the factfinder * * * has the opportunity to

see and hear the witnesses, the cautious exercise of the discretionary power of a

court of appeals to find that a judgment is against the manifest weight of the

evidence requires that substantial deference be extended to the factfinder’s

determinations of credibility. The decision whether, and to what extent, to

credit the testimony of particular witnesses is within the peculiar competence of

the factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22,

1997), Montgomery App. No. 16288.

{¶ 62} This court will not substitute its judgment for that of the trier of

facts on the issue of witness credibility unless it is patently apparent that the

trier of fact lost its way in arriving at its verdict. State v. Bradley (Oct. 24,

1997), Champaign App. No. 97-CA-03.

{¶ 63} Initially, Hill asserts that “when error is removed[,] there is
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insufficient evidence to sustain [Hill]’s conviction.” We have found no errors

to be present. Additionally, the evidence adduced by the State established that

Hill poured bleach on E.T.’s arm and then burned her arm with a hot spoon. It

is generally accepted that bleach and a hot spoon can burn an individual’s skin.

Hill’s entire defense was based on her belief that her actions were reasonable.

In fact, Hill testified that she believed the use of bleach and a hot spoon on her

daughter’s arm was a suitable and accepted home remedy for treating

ringworm.

{¶ 64} The State, to the contrary, argued throughout the trial that Hill

disregarded a known risk when she applied bleach and a hot spoon to E.T.’s

arm. It is undisputed that Hill’s “home remedy” resulted in a second degree

burn on E.T.’s arm. Thus, the jury had before it evidence which established

that Hill acted recklessly.

{¶ 65} The evidence also established that E.T. suffered a permanent burn

scar as a result of Hill’s actions. “Actions resulting in permanent

disfigurement do not require the State to show that the injury is substantial.”

State v. McGuire (December 27, 1989), Montgomery App. No. 11443. Where

the victim suffered scarring on his face and arm, we held that it was not

unreasonable to conclude that he suffered some permanent disfigurement. Id.
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The evidence adduced was sufficient to establish that E.T. suffered serious

physical harm from Hill’s “home remedy.” Thus, a review of the record

convinces us that the State’s evidence, taken in its entirety, was sufficient to

sustain Hill’s conviction for two counts of endangering children.

{¶ 66} Lastly, Hill’s conviction is also not against the manifest weight of

the evidence. The credibility of the witnesses and the weight to be given their

testimony are matters for the jury to resolve. Most notably, Hill presented

evidence in the form of her own testimony, wherein she simply maintained that

she believed that the use of bleach and hot spoon to cure ringworm was

reasonable. The jury did not lose its way simply because it chose to believe

that Hill acted recklessly and caused serious injury to E.T. Having reviewed

the entire record, we cannot clearly find that the evidence weighs heavily

against a conviction, or that a manifest miscarriage of justice has occurred.

{¶ 67} Hill’s fourth and final assignment of error is overruled.

VI

{¶ 68} All of Hill’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

..........
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HALL, J., concurs.

FROELICH, J., concurring:

{¶ 69} I agree that the statements to the social worker were

non-testimonial since the primary purpose of the general question was not to

establish or prove past events potentially relevant to later criminal prosecution;

such non-testimonial hearsay may be admissible subject to the rules of

evidence, in this situation Evid.R. 803(4). But was the statement that her mom

“told her not to tell anyone” made for the purpose of diagnosis and treatment?

{¶ 70} Although a close question, we must be careful in attempting “to

apply to children evidentiary rules which were drafted with adults in mind.”

Muttart, supra, ¶48 (internal citations omitted). And even if it were error, since

it was not a constitutional error, it was harmless. The test for determining

whether the admission of erroneous evidence is harmless and non-constitutional

error requires us to look at the whole record, leaving out the disputed evidence,

and then decide whether there is other substantial evidence to support the guilty

verdict. State v. Watters, Licking App. No. 2007-CA-00067, 2008-Ohio-4344,

¶22 citing State v. Davis (1975), 44 Ohio App.2d 335, 347: See, also, Crim.R.

52(A). Applying the considerations set out in Muttart, ¶49, the trial court did

not err in permitting the child’s complete response to be heard by the jury.
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Copies mailed to:

Andrew T. French
Lori R. Cicero
Hon. Timothy N. O’Connell